[Federal Register: May 6, 2008 (Volume 73, Number 88)]
[Proposed Rules]
[Page 24911-24915]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr06my08-31]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[FWS-R8-ES-2008-0045; 1111-FY07-MO-B2]
Endangered and Threatened Wildlife and Plants; Petition To List
the San Francisco Bay-Delta Population of the Longfin Smelt (Spirinchus
thaleichthys) as Endangered
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Notice of 90-day petition finding and initiation of status
review.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a
90-day finding on a petition to list the San Francisco Bay-Delta
population of the longfin smelt (Spirinchus thaleichthys) (longfin
smelt) as endangered under the Endangered Species Act of 1973, as
amended (Act). We find that the petition presents substantial
scientific or commercial information indicating that listing the
longfin smelt may be warranted. We, therefore, are initiating a status
review to determine if listing this species under the Act is warranted.
To ensure that the status review is comprehensive, we are soliciting
scientific and commercial data and other information regarding this
species. We will make a determination on critical habitat for this
species if, and when, we initiate a listing action.
DATES: To allow us adequate time to conduct this review, we request
that information be submitted on or before July 7, 2008.
ADDRESSES: You may submit information by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
U.S. mail or hand-delivery: Public Comments Processing,
Attn: FWS-R8-ES-2008-0045; Division of Policy and Directives
Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive,
Suite 222; Arlington, VA 22203.
We will not accept email or faxes. We will post all information
received on http://www.regulations.gov. This generally means that we
will post any personal information you provide us (see the Information
Solicited section below for more information).
FOR FURTHER INFORMATION CONTACT: Susan Moore, Field Supervisor, or
Arnold Roessler, Listing Branch Chief, Sacramento Fish and Wildlife
Office, 2800 Cottage Way, Room W-2605, Sacramento, CA 95825; telephone
(916) 414-6600; facsimile (916) 414-6712. If you use a
telecommunications device for the deaf (TDD), call the Federal
Information Relay Service (FIRS) at 800/877-8339.
SUPPLEMENTARY INFORMATION:
Information Solicited
When we make a finding that a petition presents substantial
information to indicate that listing a species may be warranted, we are
required to promptly commence a review of the status of the species. To
ensure that the status review is complete and based on the best
available scientific and commercial information, we are soliciting
information concerning the status of the longfin smelt. We request any
additional
[[Page 24912]]
information from the public, other concerned governmental agencies,
Native American tribes, the scientific community, industry, or any
other interested parties concerning the status of the longfin smelt,
including:
(1) Information on taxonomy, genetics (especially regarding
distinct population segments), distribution, habitat selection, food
habits, population density and trends, habitat trends, and effects of
management on longfin smelt;
(2) Information on the effects of climate change, sea level change,
and change in water temperatures on the distribution and abundance of
longfin smelt and their principal prey over the short and long term;
(3) Information on the effects of other potential threat factors,
including water diversions in the Sacramento-San Joaquin River Delta
(Delta), contaminants, invasive species, and changes of the
distribution and abundance of longfin smelt and their principal prey
over the short and long term;
(4) Information on management programs for longfin smelt
conservation, including mitigation measures related to water diversions
and development, habitat conservation programs, invasive species
control programs, and any other private, tribal, or governmental
conservation programs which benefit longfin smelt; and
(5) Information relevant to whether the San Francisco Bay-Delta
population of the species may qualify as a distinct population segment
(DPS).
You may submit your information concerning this finding by one of
the methods listed in the ADDRESSES section. We will not consider
submissions sent by email or fax or to an address not listed in the
addresses section.
If you submit information via http://www.regulations.gov, your
entire submission--including any personal identifying information--will
be posted on the website. If your submission is made via a hardcopy
that includes personal identifying information, you may request at the
top of your document that we withhold this information from public
view. However, we cannot guarantee that we will be able to do so. We
will post all hardcopy submissions on http://www.regulations.gov.
Information and materials we receive, as well as supporting
documentation we used in preparing this proposed rule, will be
available for public inspection on http://www.regulations.gov, or by
appointment, during normal business hours, at the U.S. Fish and
Wildlife Service, Sacramento Fish and Wildlife Office (see FOR FURTHER
INFORMATION CONTACT).
Background
Section 4(b)(3)(A) of the Endangered Species Act of 1973, as
amended (Act) (16 U.S.C. 1531 et seq.), requires that we make a finding
on whether a petition to list, delist, or reclassify a species presents
substantial scientific or commercial information to indicate that the
petitioned action may be warranted. We are to base this finding on
information provided in the petition, supporting information submitted
with the petition, and information otherwise available in our files at
the time we make the determination. To the maximum extent practicable,
we are to make this finding within 90 days of our receipt of the
petition and publish our notice of this finding promptly in the Federal
Register.
Our standard for substantial information within the Code of Federal
Regulations (CFR) with regard to a 90-day petition finding is ``that
amount of information that would lead a reasonable person to believe
that the measure proposed in the petition may be warranted'' (50 CFR
424.14(b)). If we find that substantial information was presented, we
are required to promptly commence a review of the status of the
species.
We base this finding on information provided by the petitioner that
we determined to be reliable after reviewing sources referenced in the
petition and information available in our files at the time of the
petition review. We evaluated that information in accordance with 50
CFR 424.14(b). Our process for making this 90-day finding under section
4(b)(3)(A) of the Act and section 424.14(b) of our regulations is
limited to a determination of whether the information in the petition
meets the ``substantial information'' threshold.
On August 8, 2007, we received a petition from the Bay Institute,
Center for Biological Diversity, and Natural Resources Defense Council
to list the longfin smelt as endangered within the San Francisco Bay-
Delta estuary in California, and to designate critical habitat
concurrently with the listing. The petition clearly identified itself
as a petition and included the identification information required in
50 CFR 424.14(a). The petition contained detailed information on the
natural history and biology of the longfin smelt, and the current
status and distribution of the species. It also contained information
on what the petitioners reported as potential threats to the species.
In response to the petition, we sent a letter to the petitioners dated
September 25, 2007, stating that we had secured funding and that we
would begin evaluation of the petition on October 1, 2007. We also
concluded in our September 25, 2007, letter that emergency listing of
the longfin smelt was not warranted at the time, based on the imminence
of threats and because we would be working on the finding within the
timeframe of routine listing processes.
Previous Federal Actions
On November 5, 1992, we received a petition from Mr. Gregory A.
Thomas of the Natural Heritage Institute to add the Sacramento
splittail (Pogonichthys macrolepidotus) and longfin smelt to the List
of Endangered and Threatened Wildlife and designate critical habitat
for each species. On July 6, 1993, we published a 90-day finding in the
Federal Register that the petition contained substantial information
indicating that the requested action may be warranted, and that we
would proceed with a status review of both species. On January 4, 1994,
we published a notice of a 12-month finding on a petition to list the
longfin smelt. We determined that the petitioned action was not
warranted, based on the lack of population trend data for estuaries in
Oregon and Washington, although the southernmost populations were found
to be declining. Furthermore, we found the listing of a Sacramento-San
Joaquin River estuary DPS was also not warranted because we determined
that the population was not biologically significant to the species as
a whole, and did not appear to be sufficiently reproductively isolated.
Species Information
Description and Taxonomy
The longfin smelt (Spirinchus thaleichthys), a member of the true
smelt family Osmeridae, can be distinguished from other smelts
occurring in California by its weak or absent striations on the
operculum (bony plates which supports the gill cover), incomplete
lateral line, low number of lateral line scales, and long maxillary
bones (McAllister 1963, p. 10; Moyle 2002, pp. 234-235). The pectoral
fins often extend as far as the base of the pelvic fins, and the
maxillary bones reach underneath the eyes. This fish, which often
reaches 6 inches (in) (15 centimeters (cm)) in length, has translucent
silver sides and an olive to iridescent pink back.
The longfin smelt is one of three species in its genus; the night
smelt (Spirinchus starksi) occurs in California, and the shishamo (S.
lanceolatus)
[[Page 24913]]
occurs in northern Japan (McAllister 1963, pp. 10 and 15). Because of
its distinctive characteristics, the Delta population of longfin smelt
was once described as a species separate from more northern populations
(Moyle 2002, p. 235). McAllister (1963, p. 12) merged the two species
because differences in characteristics represented a north-south
gradient of variation in these characteristics rather than a discrete
set; subsequent studies showed that populations from Washington State
and the San Francisco Bay-Delta are similar genetically (Stanley et al.
1995, p. 390). However, the San Francisco Bay population is
geographically distant from the nearest northern sustainable population
and differs in gene frequencies from populations in Washington State
(Stanley et al. 1995, p. 390). As presently described, this species'
range extends from the San Francisco Bay-Delta, California, to Prince
William Sound, Alaska (Moyle 2002, pp. 235-236).
Habitat and Life History
The longfin smelt is an anadromous euryhaline species (i.e.,
tolerant to a wide range of salinities, from freshwater to pure sea
water), with a 2-year life cycle (Moyle 2002, p. 236). Spawning occurs
in freshwater over sandy-gravel substrate, rocks, or aquatic plants.
Spawning may take place as early as November and extend into June,
although the peak spawning period is from February to April. Eggs
adhere to the bottom substrate, but the larvae inhabit open ocean. Once
hatched, the larvae are transported by flows from spawning areas to
nursery habitat. The principal nursery habitats for larvae are the
productive waters of Suisun and San Pablo Bays, where freshwater
outflow and saltwater mixes. Adults are found mainly in Suisun, San
Pablo, and San Francisco Bays, although their distribution is shifted
upstream in years of low river outflows. Sacramento-San Joaquin River
outflow into the bays has been positively correlated with longfin smelt
recruitment; the possible mechanism behind this relationship is unclear
(Stevens and Miller 1983, p. 432; Kimmerer 2002a, p. 48; Kimmerer
2002b, pp. 1275 and 1283).
Population Trends
The petition cites the California Department of Fish and Game
(CDFG) Fall Midwater Trawl (FMWT) survey as a measure of longfin smelt
abundance. The average abundance index from 1967 to 1986 was 17,616,
and 17,485 from 1980 to 1986. However, the petition reports that the
average abundance index declined to 537 from 1987 to 1994, possibly as
a result of extended drought conditions and increased water exports.
During the following 5 years (1995 to 2000), the average abundance
index increased to 4,343, and from 2001 to 2006 the average abundance
index declined to 569. The petition states the average abundance index
from 2001 to 2006 is 87 percent lower than the average abundance index
from 1995 to 2000.
Distinct Population Segment
We consider a species for listing under the Act if available
information indicates such an action might be warranted. ``Species'' is
defined in section 3 of the Act to include any subspecies of fish,
wildlife, or plant, and any distinct vertebrate population segment of
fish or wildlife that interbreeds when mature (16 U.S.C. 1532 (16)).
Along with the National Marine Fisheries Service (now the National
Oceanic and Atmospheric Administration--Fisheries), we developed the
Policy Regarding the Recognition of Distinct Vertebrate Population
Segments (DPS Policy) (February 7, 1996; 61 FR 4722) to help determine
what constitutes a DPS. The policy identifies three elements that we
are to consider in making a DPS determination. These elements include:
(1) The discreteness of the population segment in relation to the
remainder of the species to which it belongs; (2) the significance of
the population segment to the species to which it belongs; and (3) the
population segment's conservation status in relation to the Act's
standards for listing. If we determine that a population segment meets
the discreteness and significance standards, then the level of threat
to that population segment is evaluated based on the five listing
factors established by the Act to determine whether listing the DPS as
either threatened or endangered is warranted.
Discreteness
Citing the Services' DPS policy (61 FR 4722), the August 2007
petition asserts that the San Francisco Bay-Delta population of the
longfin smelt qualifies as a DPS based on discreteness. The DPS policy
states that a population may be considered discrete if it satisfies
either one of the following conditions:
(1) It is markedly separated from other populations of the same
taxon as a consequence of physical, physiological, ecological, or
behavioral factors. Quantitative measures of genetic or morphological
discontinuity may provide evidence of this separation.
(2) It is delimited by international governmental boundaries within
which differences in control of exploitation, management of habitat,
conservation status, or regulatory mechanisms exist that are
significant in light of section 4(a)(1)(D) of the Act.
The petitioners claim the San Francisco Bay-Delta population of
longfin smelt is discrete based on the first criterion, because there
is no evidence that large numbers of longfin smelt migrate between
populations within their range in the eastern Pacific or along the
California coast. Additionally, they cite survey data indicating
longfin smelt populations within several hundred miles of the San
Francisco Bay-Delta are small and possibly declining, which leads the
petitioners to conclude that it is unlikely that longfin smelt in the
San Francisco Bay-Delta are supplemented by immigration from other
areas. The petitioners cite Stanley et al. (1995, p. 395), who
concluded from gene frequency analysis and reproductive and behavioral
analysis that the San Francisco Bay-Delta longfin smelt population and
the Humboldt Bay population (the nearest possible reproducing
population) differ significantly and that gene flow between the two
populations is restricted. Additionally, the petitioners cite Moyle
(2002, p. 235) who concluded that the longfin smelt in the San
Francisco Bay-Delta are reproductively isolated from other population
units.
The Services' DPS policy requires that only one of the discreteness
criteria be satisfied in order for a population of a vertebrate species
to be considered discrete. After reviewing the information provided in
the petition, we believe the petition presents substantial information
that the San Francisco Bay-Delta longfin smelt population may be
physically isolated from other longfin smelt populations and may be
genetically distinct; therefore, we find that there is substantial
information indicating the longfin smelt population in the San
Francisco Bay-Delta may satisfy the discreteness element of the DPS
policy.
Significance
If we determine that a population meets the DPS discreteness
element, we then consider if it also meets the DPS significance
element. The DPS policy (61 FR 4722) states that if a population
segment is considered discrete under one or more of the discreteness
criteria, its biological and ecological significance will be considered
in light of Congressional guidance that the authority to list DPSs be
used ``sparingly'' while encouraging the conservation of genetic
diversity. In
[[Page 24914]]
making this determination, we consider available scientific evidence of
the discrete population's importance to the taxon to which it belongs.
Since precise circumstances are likely to vary considerably from case
to case, the DPS policy does not describe all the classes of
information that might be used in determining the biological and
ecological importance of a discrete population. However, the DPS policy
does provide four possible reasons why a discrete population may be
significant. As specified in the DPS policy (61 FR 4722), this
consideration of the significance may include, but is not limited to,
the following:
(1) Persistence of the discrete population segment in an ecological
setting unusual or unique to the taxon;
(2) Evidence that loss of the discrete population segment would
result in a significant gap in the range of a taxon;
(3) Evidence that the discrete population segment represents the
only surviving natural occurrence of a taxon that may be more abundant
elsewhere as an introduced population outside its historic range; or
(4) Evidence that the discrete population segment differs markedly
from other populations of the species in its genetic characteristics.
The petitioners claim the San Francisco Bay-Delta population of
longfin smelt is significant because: (1) It inhabits an ecological
setting unique relative to other longfin smelt populations; (2) it
represents the southernmost spawning population of longfin smelt, and
loss of this population would result in a significant gap in the range
of the species; (3) Stanley et al. (1995, p. 395) found significant
differences in gene frequency between populations in Washington State
and the San Francisco Bay-Delta, leading them to conclude the San
Francisco Bay-Delta population of longfin smelt are genetically
distinct; (4) the San Francisco Bay-Delta contains a suite of predators
and competitors not found in other populations, and this may have
resulted in unique evolutionary characteristics; and (5) it is an
indicator of the health of the San Francisco Bay-Delta and important
component of the food web.
After reviewing the information provided in the petition, we
believe the petition presents substantial information to indicate that
the San Francisco Bay-Delta longfin smelt population may be
significant. We have made this determination because of (1) The species
occurs in a unique ecological setting; (2) the San Francisco Bay-Delta
represents the southernmost spawning population for the species, and
the loss of the population may result in a significant gap in the range
of the species; and (3) the genetic characteristics of the species may
be unique from other populations of longfin smelt, and the loss of this
population may result in the loss of potential unique adaptive or
genetic characteristics of the species. Therefore, we find that there
is substantial information indicating the San Francisco Bay-Delta
population of longfin smelt may satisfy the significance element of the
DPS policy.
DPS Conclusion
We have reviewed the information presented in the petition, and
have evaluated the information in accordance with 50 CFR 424.14(b). In
a 90-day finding, the question is whether a petition presents
substantial information that the petitioned action may be warranted. We
do not make final determinations regarding DPSs at this stage; rather,
we determine whether a petition presents substantial information that a
population may be a DPS. Based on our review, we find that the August
2007 petition presents substantial scientific or commercial information
to indicate that the San Francisco Bay-Delta population of longfin
smelt may be a DPS based on its separation from other populations of
longfin smelt, the unique setting in which it occurs, and potential
genetic differences between the San Francisco Bay-Delta population and
other longfin smelt populations (Stanley et al. 1995, p. 395), which
may meet both the discreteness and significance criteria of the DPS
policy, and thus may be a listable entity under the Act. To meet the
third element of the DPS policy, we evaluate the level of threat to the
DPS based on the five listing factors established by the Act. We thus
proceeded with an evaluation of information presented in the petition
to determine whether there is substantial scientific or commercial
information indicating that listing this population may be warranted.
Factors Affecting the Species
The petition and supporting information describes a variety of
factors affecting the Delta ecosystem that have led to the decline of
the San Francisco Bay-Delta population of the longfin smelt. Principal
among these factors are the altered hydraulics and reduced outflow of
the Delta caused by export of freshwater from the Sacramento and San
Joaquin Rivers by the Federal and State water diversions (Factor A).
Additional threats to the species include entrainment at other water
diversions within the Delta (Factor A); lethal and sub-lethal effects
of toxic chemicals (Factor E); direct and indirect impacts of non-
native species on the longfin smelt food supply and habitat (Factors A
and C); physical disturbance of spawning substrate and the habitat of
their prey species from instream activities such as dredging (Factor
A); mortality, injury, and disruption of normal behavior caused by pile
driving (Factor A); and warming of estuary waters (Factor E). The
petition also discussed existing regulatory mechanisms and their
perceived inadequacy (Factor D).
Determination
The petition and supporting information have identified numerous
factors affecting the San Francisco Bay-Delta population of the longfin
smelt and the Delta ecosystem, including: Water diversions; entrainment
of fish in pumping facilities; toxic chemicals; non-native species
competition and predation; disturbance of spawning habitat through
dredging or pile driving; and lack of regulatory mechanisms protecting
the species and its habitat.
The export of freshwater from the Sacramento and San Joaquin Rivers
by the Federal and State water diversions (Factor A) alters the
hydraulics and saline conditions of the Delta estuary and reduces
outflow through San Francisco Bay, thereby affecting the habitat
conditions the species requires. Entrainment at water diversion
facilities within the Delta (Factor A) may lead to direct loss of the
species. The effects of toxic chemicals (Factor E) within the San
Francisco Bay-Delta may be a factor influencing habitat availability
and quality, reproduction success, and food availability for the
species. Non-native fish species may be causing higher levels of
predation of the species (Factors A and C) and affecting the species'
food supply. Habitat disturbance of longfin spawning substrate and the
habitat of their prey species caused by instream activities such as
dredging and pile driving (Factor A) may be a factor affecting the
species. The warming of estuary waters (Factor E) may be affecting the
species by altering habitat condition for spawning and influencing
water supply conditions for the species. The petition also discussed
existing regulatory mechanisms and their perceived inadequacy (Factor
D). The effects of all these factors may be causing the San Francisco
Bay-Delta population of the longfin smelt to decline. According to
recent fish survey information collected by CDFG, the average catch
from 2001 to 2006 was 84 to 87 percent lower than
[[Page 24915]]
the average catch from 1995 to 2000 (CDFG 2008, pp.1-4).
Our process for making this 90-day finding under section 4(b)(3)(A)
of the Act and 50 CFR 424.14(b) of our regulations is limited to the
determination of whether information meets the ``substantial scientific
and commercial information'' threshold, which is interpreted in our
regulations as ``that amount of information that would lead a
reasonable person to believe that the measure proposed in the petition
may be warranted'' (50 CFR 424.14). On the basis of information
provided in the petition and other information readily available to us,
we have determined that the petition presents substantial scientific or
commercial information that the San Francisco Bay-Delta longfin smelt
population may be a distinct population segment and that listing the
San Francisco Bay-Delta longfin smelt population as endangered may be
warranted. Therefore, we are initiating a status review to determine if
listing the species is warranted. To ensure that the status review is
comprehensive, we are soliciting scientific and commercial data and
other information regarding this species.
It is important to note that the ``substantial information''
standard for a 90-day finding is in contrast to the Act's ``best
scientific and commercial data'' standard that applies to a 12-month
finding as to whether a petitioned action is warranted. A 90-day
finding is not a status assessment of the species and does not
constitute a status review under the Act. Our final determination as to
whether a petitioned action is warranted is not made until we have
completed a thorough status review of the species, which is conducted
following a 90-day finding. Because the Act's standards for 90-day and
12-month findings are different, as described above, a positive 90-day
finding does not mean that the 12-month finding will also be positive.
The petitioners also requested that critical habitat be designated
for this species. We always consider the need for critical habitat
designation when listing species. If we determine in our 12-month
finding that listing the longfin smelt is warranted, we will address
the designation of critical habitat in a subsequent proposed rule.
Significant Portion of the Species' Range
The Petitioner seeks to list the entire San Francisco Bay-Delta
longfin smelt population. During our status review we will evaluate
whether the information provided and in our files supports listing and
whether there may be a portion of the longfin smelt's range that may be
significant. As a result we will leave our analysis and determination
of issues of significant portion of range to the 12-month finding.
References Cited
A complete list of all references cited herein is available, upon
request, from the Sacramento Fish and Wildlife Office (see ADDRESSES
section).
Author
The primary authors of this notice are staff of the Sacramento Fish
and Wildlife Office, U.S. Fish and Wildlife Service, 2800 Cottage Way,
Sacramento, CA 95825.
Authority
The authority for this action is the Endangered Species Act of 1973
as amended (16 U.S.C. 1531 et seq.).
Dated: April 28, 2008.
Kenneth Stansell,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. E8-9835 Filed 5-5-08; 8:45 am]
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